Tag Archives: Third-Party Doctrine

Apple products are themselves evidence for the proper model of legal protection for privacy. Why undermine that now by supporting federal regulation based on the wrong model?

Dear Mr. Cook,

I’ve been an Apple user since your company released the beautiful, floating-screen iMac in 2002. Epinions.com no longer exists, but soon after I got my iMac I wrote an effusive review there called “Fashion, Function and Fun–All in One.” Since then I’ve used nothing but Mac computers, as well as iPads, iPhones, and an Apple Watch. Like so many Apple users, I love the elegant, intuitive design and ease of use of your products.

Although my academic research has been focused on the “right” to privacy, I never paid too close attention to the privacy features of Apple products. Yes, I was relieved to learn that Apple computers are less susceptible to viruses than other brands. And I loved hearing about how seriously Steve Jobs took the responsibility of Apple customers entrusting their private information to Apple. But it was only in recent years that I learned more about what, concretely, Apple does to protect customer privacy–by creating the tools necessary for us to safeguard and control our private information.

First, I cheered Apple’s refusal to write software that would unlock a user’s encrypted phone. Phone encryption puts law enforcement back in the position they’ve been in traditionally: having to present a warrant to the actual user/data subject/suspect, instead of presenting a warrant, or perhaps merely a subpoena, to a “third party.” Given the amount of private information contained in our phones–the Supreme Court has recognized that it’s often even more private, more comprehensive, than what might be found by searching our homes–law enforcement should have to present a search warrant to the subject of investigation directly. Apple’s default encryption features help ensure this.

More recently, I was excited to learn about numerous other features of Apple hardware and software that allow us to withhold personal information about ourselves, our devices, and our use of them, from companies whose web sites we visit, or whose apps we use. I was so impressed with Apple’s efforts to continually improve these and make them more robust, that I featured this Fast Company article about them as a “good news” stories in a “News Sandwich”:

Most people reading this letter–you included–will probably now expect me to add Apple’s support this week for “comprehensive federal privacy legislation” as another reason to applaud your company’s efforts to protect our privacy interests. But the opposite is true. I believe that, in supporting federal privacy regulation, you are undermining the progress you’ve made putting control over privacy into the hands of us, your customers.

Why? Because by supporting the enactment of privacy regulation–particularly regulation based on the idea that “privacy is a fundamental human right”–you are helping to further entrench an entire legal framework that undermines our ability to actually protect privacy. This seems ironic, perhaps, but consider the evidence for the proper model for legal protection of privacy that your company itself has provided. Your products have become a powerful demonstration of the real foundation of privacy: property and contract. You allow us to buy a product, which we can then use to create a state of privacy for ourselves, to protect our private information, and to control which information we share with other companies. Your products put the control over privacy where it should be: with the individual, via our exercise of our property and contract rights.

Unfortunately, by supporting federal legislation based on a distinct right to privacy, you risk ripping control over privacy out of our hands, and putting it in the hands of government. This means, per the current legal framework, we’ll be even more at the mercy of whatever some judge, legislator or bureaucrat deems our “reasonable expectations of privacy” to be. (Read more here as to why upholding a distinct “right” to privacy is not just “theoretically” wrong, but in fact destroys our ability to properly protect states of privacy.) What’s worse is that Apple is doing this at precisely the time when the Supreme Court may be prepared to recognize the proper basis for the legal protection of privacy. (See the dissents by Justices Thomas and Gorsuch in the Court’s recent Carpenter ruling, discussing a property basis for requiring a warrant to obtain cell phone location data from a service provider.*)

You’ve done so much–perhaps more than any other tech company–to give us de facto privacy. Please don’t compromise that by helping to make de jure privacy all but impossible.

Sincerely,

Amy Peikoff

*Incidentally, the full solution to the problem of the third-party doctrine, presented in Carpenter, is outlined in this article.

This morning the Supreme Court heard Carpenter v. United States, a case concerning legal protection for the privacy of location data collected by cell phone service providers. Will the Court reinstate Fourth Amendment privacy protection for our data? This and more on today’s show. See Program Notes, below, for the stories, etc., I plan to discuss.

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While Edward Snowden has done heroic things to expose our government’s unjust mass surveillance programs, he’s unfortunately promoting the same theory of privacy that gave rise to those programs. Tune in to hear more. Other stories, too. See Program Notes, below, for all the stories, etc., I plan to discuss.